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Miller v. Stowell

IN THE UNITED STATES DISTRICT COURT FOR THE EASTERN DISTRICT OF CALIFORNIA


July 7, 2010

ERNEST MILLER,, PLAINTIFF,
v.
B. STOWELL, ET AL., DEFENDANTS.

ORDER

Plaintiff, a state prisoner proceeding pro se, has filed a civil action pursuant to 42 U.S.C. § 1983. Plaintiff has not paid the filing fee of $350.00 or submitted an application requesting leave to proceed in forma pauperis. However, a review of the court's own records reveals that on numerous occasions prior to the filing of this action, plaintiff has filed lawsuits that were dismissed on the grounds that they were frivolous or failed to state a claim upon which relief may be granted.*fn1 A prisoner may not bring a civil action or appeal a civil judgment under the in forma pauperis statute if the prisoner has, on 3 or more prior occasions, while incarcerated or detained in any facility, brought an action or appeal in a court of the United States that was dismissed on the grounds that it is frivolous, malicious, or fails to state a claim upon which relief may be granted, unless the prisoner is under imminent danger of serious physical injury.

28 U.S.C. § 1915(g).

In Miller v. McGrath, Case No. 2:08-0070 HWG-KSC, the assigned District Judge found that plaintiff had previously filed three or more actions that had been dismissed as frivolous, malicious or as failing to state a claim. See Miller v. McGrath, Case No. 2:08-0070 HWG-KSC, Doc. No. 21. Pursuant to 28 U.S.C. § 1915(g), the District Judge ruled that plaintiff was ineligible to proceed in forma pauperis in that action. Id. at 3. Adopting that prior determination in this case, the court finds that plaintiff may not proceed in forma pauperis in this action unless he is "under imminent danger of serious physical injury." 28 U.S.C. § 1915(g).

In the complaint filed in this action, plaintiff contends that he has been erroneously identified as a gang member and placed in prison housing for gang members. Plaintiff contends that this was done to make him ineligible to earn good time credits and to place him in a more dangerous living environment. Plaintiff names three correctional counselors as defendants. In his prayer for relief, plaintiff seeks only monetary damages in the amount of $300,000,000.00. Although plaintiff makes an allegation about "undercover correctional officers" dressing as inmates to murder gang members, this bare allegation is unsupported by any specific factual allegations. Plaintiff's complaint appears to be focused instead on a rule violation for which he was cited and on administrative appeals to change his classification back to "A1A Work group/Privilege Group half time credit earning status[.]" Therefore, plaintiff has made no showing that he is in imminent danger of serious physical injury, and the court will order plaintiff to pay the $350.00 filing fee. Failure to pay the fee in full will result in the dismissal of this action without prejudice.

Accordingly, IT IS HEREBY ORDERED that:

1. Pursuant to 28 U.S.C. § 1915(g), plaintiff is found ineligible to proceed in forma pauperis in this action; and

2. Within thirty days from the service of this order, plaintiff shall pay the $350.00 filing fee. Failure to pay the filing fee will result in the dismissal of this action without prejudice.


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